Thursday, May 03, 2018

The Calm Before the [Non-Originalist] SCOTUS Storm

By Eric Segall

The Supreme Court is not scheduled to hand down any more opinions until May 14. From that day until the end of June, the Court is likely to issue country-changing decisions in a number of different areas of the law. If the Justices are going to go on a spree striking down statutes, executive orders, state redistricting, and police practices, they'll have to do it through the Living Constitution.
Here are some of the important cases to come. In Masterpiece Cakeshop, the Justices will decide whether the First Amendment trumps Colorado's desire to eradicate discrimination against gays and lesbians in the marketplace. In Janus v. AFSCME, the Court will rule on whether to overturn a 1977 decision that has allowed 23 states to charge non-union state employees fees as long as those fees are used by the union to negotiate for better working condition. And in National Institute for Family and Life v. Becerra the Justices will decide whether the First Amendment prohibits California from requiring so-called "pregnancy crisis centers" to post certain information about state resources governing abortion.

All three cases are brought by plaintiffs challenging state laws as violating free speech, even though in all three cases the plaintiffs may speak as much as they want about any subject they want whenever and wherever they want. It is true that there are extreme cases where the government violates the First Amendment by requiring people to adhere to a particular message. The government is not allowed, for example, to require children to say the pledge of allegiance in school even if the children may criticize that requirement outside of school. But such cases are few and far between, and that principle is not implicated by requiring a baker to sell a cake without a message, by requiring state workers to contribute money to a union when the union is acting in their interest, or by requiring licensed pregnancy centers to inform women of publicly funded services by posting a piece of paper in their offices.

One does not have to be a legal realist to wonder whether the Justices' views on abortion, gay and lesbian issues, and the rights of unions may affect how the Justices view the alleged free speech issues in these cases. If the Justices rule for the plaintiffs in all three cases, the implications will be serious for both the culture wars and the rights of women, gays and lesbians, and unions. Moreover, if the questions in these cases are rephrased as whether the original meaning of the Constitution prohibits the state laws at issue, the answers are easy. No, it does not.

As Professor Jud Campbell has recently shown, most First Amendment doctrine cannot be justified by the provision's original meaning, even those cases that scholars, left and right, think are correct. But few of those cases involve laws that don't restrict any speech at all. So, should the Justices tell the states they don't have authority to makes these decisions, let's hope they at least own that they are doing so based on the Court's own precedents and the Justices' current values, not the original meaning of the First Amendment.

The Court also has to decide several redistricting cases where both Republicans and Democrats have used sophisticated computer technology to protect incumbents and hurt the opposing party. These cases raise both free association and equal protection concerns. It is not an overstatement to suggest that the outcome of these cases could drastically affect our democracy and how all fifty states structure their elections. These cases are complex and learned scholars on both sides have many different opinions on how they should come out. But two things are clear: 1) if the Justices wade into this thicket (and maybe they should) the impact on our country will be substantial; and 2) there are no serious arguments based on the Constitution's original meaning that would justify judicial intervention (which is not to say they shouldn't intervene).

The Justices also have to rule on Trump Travel Ban III. I recommend Mike's great post here for a full analysis. This case is obviously enormously important for both immigration law and our stature in the world. The plaintiffs are challenging the ban on both statutory and Establishment Clause grounds. Applying the Establishment Clause to people not yet in this country may be right or may be wrong, and may even be consistent with the original meaning of the Clause, though I seriously doubt it. In any event, there is little chance the two self-identified originalists on the Court (Thomas and Gorsuch) are going to vote to strike the ban down.

The Justices also have to decide in Carpenter v, United States whether warrantless searches of cell phone histories showing where the phone was located violates the Fourth Amendment. This case might have enormous implications for how the police do their jobs. It is difficult to see how 1791 values and principles could possibly help answering this question. However the Justices rule, and whether or not they cloak their conclusions in originalist rhetoric, it will be modern values and the personal weighing of the pros and cons of requiring the government to obtain a warrant before accessing this information that will rule the day.

There are many other cases awaiting decision this term but these are the ones most people are watching or care about. The Justices have a lot of work to do, and there will be many concurring and dissenting opinions. We can expect the culture wars to heat up dramatically. What we shouldn't expect, because it likely won't happen, are persuasive originalist arguments supporting the votes to strike down these laws (with the possible exception of the travel ban). That does not mean the Justices shouldn't invalidate these laws, but if they do, they should own the decisions and not ascribe them to people who died long, long ago.

4 comments:

But the New Originalism may look to its Construction Zone to dig up "artifacts of history" to capture the "spirits" of the original meanings of constitutional text that may seem unclear, displaying faith in originalism.

"Rethinking the Unitary ExecutiveThe originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place."Ilya Somin|May 3, 2018 6:51 pm

Ilya self describes as a conservative and libertarian originalist. Ilya has already added two Updates to his post. This "Ilya wind" is most refreshing in the Trump Era, although many conservatives and libertarians may disagree. But I await the reaction of the Originalism Blog as it applies its anticipated originalism wet finger test.